Sen. Menendez Comments on Iran Resolution and War Powers

Scott R. Anderson
Tuesday, February 25, 2020, 3:37 PM

Published by The Lawfare Institute
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Yesterday, Democratic Sen. Bob Menendez, the ranking member of the Senate Foreign Relations Committee, introduced a notable statement into the congressional record relating to S.J. Res. 68, the joint resolution on the use of military force against Iran that the Senate passed 55-45 on Feb. 13, 2020.

In his comments, Menendez drew specific attention to S.J. Res. 68’s language directing the president to “terminate the use of United States Armed Forces for hostilities” against Iran. He observed that this language departs from the language in the expedited procedures used to enact S.J. Res. 68, which expressly address joint resolutions that “require[] the removal of United States Armed Forces engaged in hostilities outside the territory of the United States … .” As Margaret Taylor and I explained in our article on the various Iran resolutions, such differences in language create a risk that a resolution will be found ineligible for those procedures. Menendez argued that the Senate’s decision to instead move forward with S.J. Res. 68 as written through the expedited procedures creates “[a] precedent [that] is noteworthy for two reasons”:

First, it clarifies that there are no magic words required for privilege. This means that a resolution that requires the President to stop the use of U.S. Armed Forces in hostilities will not be deprived of expedited consideration in the Senate over semantics. Second, it provides a degree of flexibility for Senators who seek to stop such hostilities. For example, ‘‘terminate’’ or other synonyms may be more appropriate than ‘‘remove’’ for certain situations, like cyber operations, where implying a need for or requiring the physical removal of forces may not be practicable or desirable.

Menendez also rebutted several of the legal rationales presented by the Trump administration for the Jan. 2 killing of Iranian military leader Qassem Soleimani, including the suggestion that such action could be justified by the designation of the Islamic Revolutionary Guard Corps as a Foreign Terrorist Organization.

The full text of Menendez’ statement is available online and reproduced below:

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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